IN THE SUPREME COURT OF FLORIDA
CASE NO. 06-2175
JOE ANDERSON, JR.,
Petitioner,
vs.
GANNETT COMPANY, INC., MULTIMEDIA
HOLDINGS CORP., d/b/a the PENSACOLA NEWS
JOURNAL, and MULTIMEDIA, INC.,
Respondents.
PETITIONER’S INITIAL BRIEF
BEVERLY A. POHL
BROAD AND CASSEL
100 S.E. Third Avenue
Suite 2700
Fort Lauderdale, FL 33394
(954) 764-7060
WILLIE E. GARY
PHYLLIS GILLESPIE
C.K. HOFFLER
GARY,WILLIAMS,
PARENTI,
FINNEY,
LEWIS,
MCMANUS,WATSON & SPERANDO
221 E. Osceola Street
Stuart, Florida 34994
(772) 283-8260
BRUCE S. ROGOW
BRUCE S. ROGOW, P.A.
Broward Financial Centre, Suite 1930
500 East Broward Blvd.
Fort Lauderdale, FL 33394
(954) 767-8909
Counsel for Petitioner
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF THE CASE .................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................6
ARGUMENT .............................................................................................................7
THE STATUTE OF
LIMITATIONS FOR
A FALSE LIGHT CLAIM IS
FOUR YEARS,
..................................................................................................... NOT TWO YEARS
7
......................................................................................................................................
A.
......................................................................................................................................
B.
CONCLUSION........................................................................................................23
CERTIFICATE OF SERVICE ................................................................................25
CERTIFICATE OF COMPLIANCE ......................................................................26
APPENDIX ........................................................................................................... Tab
Amy K. Streater, Company
Pursues Political Clout, The
......................................................................................................................................
Pensac
........................................ First District Court of Appeal Opinion (October 20, 2006)
B
....................................................................................................Legislative Materials
C
2
TABLE OF AUTHORITIES
CASES
Page
Agency for Health Care Admin. v. Assoc. Industries of
.................................................................. Florida, Inc., 678 So. 2d 1239 (Fla. 1996)
19, 20-
Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156 (Fla. 2003).......................................21
Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753,
..............................................................................................149 L.Ed. 2d 787 (2001)
17
Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House
............................................. Condominium Assoc. Inc., 581 So. 2d 1301 (Fla. 1991)
6, 10-1
Boyles v. Mid-Florida Television Corp., 431 So. 2d 627
..................................................................................................... (Fla. 5th DCA 1983)
14-15
Brown v. Tallahassee Democrat, Inc., 440 So. 2d 588 (Fla. 1st DCA 1983) ..........14
Eastwood v. Cascade Broadcasting Co., 722 P.2d 1295 (Wash. 1986)..................18
Florida Farm Bureau Cas. Ins. Co. v. Cox, 31 Fla.L. Weekly D2679,
...................................................................... 2006 WL 3024902 (Fla. 1st DCA 2006)
11-12
Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct. 2603,
..............................................................................................105 L.Ed. 2d 443 (1989)
16-17
Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir. 1983)............................................. 18-19
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997,
................................................................................................. 41 L.Ed 2d 789 (1974)
Heekin v. CBS Broadcasting, Inc., 789 So. 2d 355 (Fla. 2d DCA 2001) ...........5, 22
J.B. v. Sacred Heart Hosp., 635 So. 2d 945 (Fla. 1994) .........................................11
iii
9
TABLE OF AUTHORITIES
(Continued)
CASES
Page
Magenis v. Fisher Broadcasting, Inc., 798 P.2d 1106 (Or. Ct. App. 1990)............18
McBride v. Pratt & Whitney, 909 So. 2d 386 (Fla. 1st DCA 2005)...........................7
Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695,
.................................................................................................. 111 L.Ed. 2d 1 (1990)
9
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710,
................................................................................................. 11 L.Ed 2d 686 (1964)
9
Piver v. Hoberman, 220 So. 2d 408 (Fla. 3d DCA 1969) .......................................15
Racetrack Petroleum, Inc. v. Delco Oil, Inc.,
..................................................................................... 721 So. 2d 376 (Fla. 5th DCA)
7
Rasmussen v. Collier County Publishing Co., 31 Fla. L. Weekly D3112a,
......................................................................2006 WL 3615189 (Fla. 2d DCA 2006)
16
Robinson v. Vitro Corp., 620 F. Supp. 1066 (D. Md. 1985) ...................................18
Smith v. Esquire, Inc., 494 F. Supp. 967 (D. Md 1980) ..........................................18
United Auto Ins. Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2001) ................................10
CONSTITUTION/STATUTES
Art. I, § 4, Fla. Const................................................................................................13
§ 95.11(3)(p), Fla. Stat.......................................................................................................... 5-6
§ 95.11 4(g), Fla. Stat....................................................................................... 7-8, 19
§ 95.11(p), Fla. Stat....................................................................................................8
iv
TABLE OF AUTHORITIES
(Continued)
OTHER
Page
BLACK’S LAW DICTIONARY, 6th ed. (1990) ................................................................ 8-9, 15
Florida Civil Standard Jury Instructions 4.1............................................................16
Florida Civil Standard Jury Instructions 4.3...................................................... 13-14
J. Clark Kelso, False Light Privacy: A Requiem,
............................................................................... 32 Santa Clara L.Rev. 783 (1992)
v
22
STATEMENT OF THE CASE
Petitioner Joe Anderson, Jr. seeks reversal of a decision of the First District
Court of Appeal, which certified conflict and certified a question of great public
importance on the issue of the applicable statute of limitations for a false light
invasion of privacy claim. In the District Court, the Appellants (Respondents in
this Court) raised numerous issues, but the District Court reversed on statute of
limitations grounds, and declined to address the other issues presented by the
Respondents.
This case began in 2001 when Joe Anderson, Jr. sued the Pensacola News
Journal and its parent companies for libel, tortious interference with a business
relationship and, in an amended complaint, false light invasion of privacy. RI-130; RII-212-27. (orig. Compl., Amended Compl.). The lawsuit was prompted by
a series of articles published between December 13, 1998 and July 12, 2000, which
concerned work done in Escambia County by Anderson’s road paving company,
Anderson Columbia, Inc. The only claim that went to trial was Anderson’s false
light claim based on the Pensacola News Journal’s December 14, 1998 story
headlined “Company pursues political clout” and inside page headline
“Anderson Columbia keeps eye on state, local politician.” See Appendix A to
1
this Brief.
The article contained these three paragraphs in the midst of the
“political clout” story:
In 1988, while still on probation and
before his conviction was reversed,
Anderson shot and killed his wife, Ira
Anderson with a 12-gauge shotgun.
The death occurred in Dixie County
just north of Suwanee where days before the
shooting Joe Anderson had filed for divorce
but then had the case dismissed.
Law enforcement officials determined
the shooting was a hunting accident.
The story continued.
A federal judge ruled that by having
the shotgun, Anderson violated his
probation, and the judge added two years to
Anderson’s probation.
Capt. Bob Stanley of the Florida
Game and Fresh Water Fish Commission,
was one of the officials who went to the
scene of the shooting.
Anderson said that he and his wife
were deer hunting when she walked one way
down a road and he walked the other way,
Stanley recalls. A deer ran between them
and Joe Anderson fired twice. One shot hit
the deer, the other hit his wife.
2
“One buckshot pellet hit her under the
arm and went through her heart,” Stanley
said.
When investigators arrived on the
scene, he said, they found that the other
people in the hunting party had taken the
deer back to the hunt club and were cleaning
it.
“You have to understand, it’s Dixie
County,” he said. “Back then, they shut
down the schools for the first week of
hunting season.”
He said that Anderson had stayed
behind at the shooting scene, and he
described Anderson as looking “visibly
upset” after the shooting.
The complete December 14, 1998 article is reproduced in Appendix A.
Anderson stipulated that the facts set forth in the story were literally true.
RXX-3844-65. His false light claim was that The News Journal, acting with
“actual malice,” i.e., reckless disregard, intentionally portrayed him as a murderer.
Id. The evidence of that intentional portrayal included the patent discordance of
the 1988 death/divorce/deer hunting/deer cleaning into the 1998 “political clout”
headline story. It also included the testimony of the reporter and editors who
sought to explain the relevancy of death and deer hunting in 1988 to the Anderson
3
Columbia 1998 story, and the editorial oversight of the story.
The reporter
maintained that the ten year-old incident was relevant to the “political clout” story
because it was connected to a fifteen year-old (reversed) mail fraud conviction that
arose from a bribery prosecution of Hillsborough County Commissioners. TR14768-783. One of the editors testified that including the dismissal of the divorce
petition in the initial paragraph served this purpose: “[I]f anybody even wondered
about that, obviously they were happy.” Id. at 991-92.
The jury returned a verdict in favor of Anderson, awarding him $18.3
million dollars. RXXV-4069-70. The News Journal and its parent companies
appealed, asserting the following “Points,” in the following order: “I: Plaintiff
failed to prove material falsity; II: Plaintiff failed to prove that Defendants
published with ‘actual malice’; III: The News Journal article was privileged; IV:
Plaintiff failed to prove damages for which he may be properly compensated; and
V: Plaintiff’s claim is barred by the two year statute of limitations.” Appellants’
District Court Initial Brief, pp. i-ii.
The First District Court of Appeal reversed only on the statute of limitations
issue, finding it “unnecessary” to address the newspaper’s other arguments:
In summary we conclude that an invasion of
privacy case based on the false light theory
is governed by the two-year statute of
4
limitations that applies to defamation actions
and not the four-year statute that applies to
unspecified torts.
*
*
*
Accordingly, we certify the following
question as a question of great public
importance:
Is an action for invasion of
privacy based on the false light
theory governed by the twoyear statute of limitations that
applies to defamation claims or
by the four-year statute that
applies to unspecified tort
claims?
Appendix B, pp. 23-24. The court also recognized that its decision could not be
reconciled with Heekin v. CBS Broadcasting, Inc., 789 So. 2d 355, 358 (Fla. 2d
DCA 2001), and certified conflict with Heekin. Id. at 23.
Judge Lewis concurred in the reversal, believing that on the facts of this case
the two year statute should apply, but disagreed with the notion that all false light
invasion of privacy claims are subject to the two year statute. Id. at 25.
In this appeal, Joe Anderson seeks reversal of the District Court of Appeal
decision and the reinstatement of his judgment. Simply put, Anderson’s argument
is that because the Pensacola News Journal published an article that was “true,” he
5
could not have brought a libel or slander claim, therefore the libel or slander statute
of limitations cannot be applied to this case.
The only relevant statute of
limitations that could be applied is the four year statute of limitations set forth in
section 95.11(3)(p), Florida Statutes: “within four years” for “any action not
specifically provided for in these statutes.”
SUMMARY OF THE ARGUMENT
The certified question must be answered in accordance with the plain
statutory limitations language. An “action for libel or slander” is governed by a
two year statute of limitations. A false light invasion of privacy claim — a species
of tort long recognized by Florida law — is not an action for “libel or slander,”
therefore it is not governed by the two year statute. Since the Florida Statutes do
not set forth a limitations period for false light claims, the claim is “not specifically
provided for in these statutes” (see section 95.11(3)(p)) and thus the four year
statute applies. That answer is correct because the statutes of limitations are
specific and not subject to judicial realignment “and where there is any reasonable
doubt as to legislative intent, the preference is to allow the longer period of time.”
Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium
Assoc. Inc., 581 So. 2d 1301-1303 (Fla. 1991).
6
ARGUMENT
THE STATUTE OF LIMITATIONS FOR
A FALSE LIGHT CLAIM IS FOUR
YEARS, NOT TWO YEARS
The standard of review is de novo because the outcome of the appeal turns
on the interpretation of Florida statutes, a purely legal matter. McBride v. Pratt
Whitney, 909 So. 2d 386, 387 (Fla. 1st DCA 2005); Racetrack Petroleum, Inc. v.
Delco Oil, Inc., 721 So. 2d 376, 377 (Fla. 5th DCA 1998).
A.
The Statute of Limitations
The certified question is succinct:
Is an action for invasion of privacy based on
a false light theory governed by the twoyear statute of limitations that applies to
defamation claims or by the four- year
statute that applies to unspecified tort
claims?
App. B, p. 24.
The obligation to follow plain statutory language provides the answer to the
certified question. The two year statute that applies to defamation claims does not
apply, because a false light claim based on true statements is not a “libel or slander
claim.” Chapter 95, Florida Statutes, governs “Limitations of Actions.” Section
7
95.11 4(g) provides:
(4)
WITHIN TWO YEARS. ––
(g)
*
*
*
An action for libel or slander.
Section 95.11 (3)(p) provides:
95.11 Limitations other than for recovery
of real property. — Actions other than for
recovery of real property shall be
commenced as follows:
*
(3)
*
WITHIN FOUR YEARS. —
*
(p)
*
*
*
Any action not specifically provided
for in these statutes.
Libel and slander is “specifically provided for;” false light is not “specifically
provided for;” false light based on true statements is not libel and slander; therefore
false light is subject to the four year statute of limitations. 1
“Libel” is “[a] method of defamation expressed by print, writing, pictures or
1
Any doubts about that are resolved by the fact that the last session of
the Legislature considered two bills that would have changed the statute of
limitation for false light to two years. Both bills failed. See S.B. 1346, 38th Legis.
Sess. (Fla. 2006) and H.B. 1323, 38th Legis. Sess. (Fla. 2006). Both bills and the
accompanying Staff Analyses are attached as Appendix C to this Brief.
8
signs.” BLACK’S LAW DICTIONARY, 6th ed. (1990). “Slander” is “[t]he speaking of
false and defamatory words tending to prejudice another in his reputation,
community standing, office, trade, business or means of livelihood.” Id. Libel and
slander constitute defamation.
“Defamation” is “[a]n intentional false
communication, either published or publicly spoken, that injures another’s
reputation or good name. . . . [and] [i]ncludes both libel and slander.” Id.
Thus, falsity of the communication – the untruth of the communicated
statement – is the touchstone of libel and slander. Every defamation case requires
a published false statement. See New York Times Co. v. Sullivan, 376 U.S. 254,
279, 84 S. Ct. 710, 11 L.Ed 2d 686 (1964) (“The constitutional guarantees require,
we think, a federal rule that prohibits a public official from recovering damages for
a defamatory falsehood relating to his official conduct. . . .”)
See also Justice
Powell’s opinion for the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 339,
94 S.Ct. 2997, 41 L.Ed 2d 789 (1974) (“[T]here is no constitutional value in false
statements of fact”); Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S. Ct.
2695, 111 L.Ed. 2d 1 (1990) (a false statement of fact gains no constitutional
immunity if the speaker simply adds “the words ‘I think.”’). If there is no false
statement of fact there is no action for defamation.
The actual words printed by The News Journal – the actual statements, the
9
actual communication – plainly involved no false statements. Therefore they did
not constitute libel or slander. The Legislature’s words – “libel and slander” –
have plain meaning, and the District Court erred in ignoring them in its effort to
cast false light into the libel/slander two year statute. This principle is clear:
Where the wording of the law is clear and
amenable to a logical and reasonable
interpretation, a court is without power to
diverge from the intent of the legislature as
expressed in the plain language of the law.
United Auto Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001). This Court has
hued to that principle with special force in a statute of limitations setting:
The duty of this Court in construing
statutory language is to determine what the
legislature intended when it passed the
statute. Shelby Mut. Ins. Co. v. Smith, 556
So. 2d 393, 395 (Fla. 1990). We are
confined in the first instance to the plain
meaning of the words the legislature chose
to employ. Id. Furthermore, the legislature
is presumed to know the meaning of the
words chosen and to have expressed its
intent by use of those words. S.R.G. Corp.
v. Department of Revenue, 365 So. 2d 687
(Fla. 1978). When words or terms are not
specifically defined in the statute, such
words must be given their plain or ordinary
meaning. E.g., Citizens v. Public Serv.
Comm’n, 425 So. 2d 534 (Fla. 1982).
Finally, statutes should be construed with
reference to the common law, and we must
10
presume that the legislature would specify
any innovation upon the common law. Ellis
v. Brown, 77 So. 2d 845, 847 (Fla. 1955).
In addition to these principles governing
statutory construction generally, we must
also consider principles specifically
governing statutes of limitations. Statutes of
limitations bar the enforcement of an
otherwise valid cause of action.
The
purpose is to “protect against the risk of
error in decisions concerning the merits of
such claims which results from the difficulty
of obtaining evidence of events which
transpired and circumstances which
prevailed in the remote past.” 3A Sutherland
Statutory Construction § 70.03, at 493
(Sands 4th ed. 1986). Where a statute of
limitations shortens the existing period of
time the statute is generally construed
strictly, and where there is reasonable doubt
as to legislative intent, the preference is to
allow the longer period of time. See Haney
v. Holmes, 364 So. 2d 81 (Fla. 2d DCA
1978), appeal dismissed, 367 So. 2d 1124
(Fla. 1979).
Baskerville-Donovan Engineers, Inc. v. Pensacola Executive House Condominium
Assoc. Inc., 581 So. 2d 1301, 1302-03 (Fla. 1991) (emphasis supplied). See also
J.B. v. Sacred Heart Hosp., 635 So. 2d 945, 947-48 (Fla. 1994).
The court below ignored its own longstanding recognition of the principle of
strict application of plain statutory language. See Florida Farm Bureau Casualty
11
Insurance Co. v. Cox, 31 Fla. L.Weekly D2679, 2006 WL 3024902 (Fla. 1st DCA
2006):
“[T]his court is without power to construe
an unambiguous statute in a way which
would extend, modify, or limit it express
terms or its reasonable and obvious
implications.
To do so would be an
abrogation of legislative power.
Am.
Bankers Life Assurance Co. of Fla. v.
Williams, 212 So. 2d 777, 778 (Fla. 1st DCA
1968).” Beshore v. Dep’t of Fin. Servs.,
[928 So. 2d 411, 413 (Fla. 1st DCA 2006)].
“‘It is a settled rule of statutory construction
that unambiguous language is not subject to
judicial construction, however wise it may
seem to alter the plain language. . . . We
trust that if the legislature did not intend the
result mandated by the statute’s plain
language, the legislature itself will amend
the statute at the next opportunity.’” [Fla.
Dept. Of Child. & Fam. Servs. v. McKim,
869 So. 2d at 760, 762 (Fla. 1st DCA 2004)]
(quoting State v. Jett, 626 So. 2d 691, 692
(Fla. 1993)). Atlantis at Perdido Ass’n, Inc.
v. Warner, 932 So. 2d 1206, 1212-13 (Fla.
1st DCA 2006). We reaffirm our recently
restated commitment to these fundamental
principles, and acknowledge that our limited
role in the constitutional scheme leaves
statutory amendment to the Legislature.
Id. at D2680.
Had the court below followed those principles and this Court’s decisions it
12
would not have applied the libel/slander statute of limitations. The Legislature did
not include the false light invasion of privacy tort in its statutes of limitations. The
tort has long been recognized in Florida, as the District Court grudgingly
acknowledged. App. B, pp. 12-13. There is no indication that the legislature
intended to limit false light claims to the libel or slander limitations period.
Indeed, the recent failed legislation, which sought to impose a two year limitation
on false light (see p. 8, n. 1, supra), compels the conclusion we assert – false light
and libel and slander are not synonymous for statute of limitations purposes.
One of the reasons the District Court equated false light with defamation
was its view that “a claim of libel can also be asserted on the theory that the
defamatory fact was implied,” therefore the court opined that the truth of the facts
published about Anderson was not decisive. App. B, p. 23. However, the two
cases cited by the court do not support its “false light equals defamation” approach
because the “implications” in those cases were based on actual falsities and
“implied defamation” does not mean that literally true statements can be actionable
as libel or slander. Indeed, truth is the defense to a defamation claim. See Art. I, §
4, Fla. Const. 2
See also Florida Civil Standard Jury (Defense) Instructions 4.3 b
2
That constitutional provision states: “Every person may speak, write
and publish sentiments on all subjects but shall be responsible for the abuse of that
13
(“A statement is substantially true if its substance or gist conveys essentially the
same meaning that the truth would have conveyed. In making this determination,
you should consider the context in which the statement is made and disregard any
minor inaccuracies that do not affect the substance of the statement”). The law
could not be clearer – true statements are not libel or slander.
In Brown v. Tallahassee Democrat, Inc., 440 So. 2d 588 (Fla. 1st DCA
1983), a newspaper story about a murder trial involving a defendant named
Johnson was accompanied by a small head-shot photograph of the plaintiff, George
Thomas Brown. The caption beneath the picture was the single name “Johnson.”
Id. at 589. The caption was false because the pictured Brown was not Johnson.
Brown alleged that “the mispublication of his photograph gives the article a
defamatory implication, namely that plaintiff Brown is guilty of or on trial for
murder.” Id. Thus, the defamatory implied fact was the product of a false fact –
putting Brown’s picture above the murder defendant’s name.
Boyles v. Mid-Florida Television Corp., 431 So. 2d 627 (Fla. 5th DCA
1983), the second case cited by the court below, is also not supportive of the
right. No law shall be passed to restrain or abridge the liberty of speech or of the
press. In all criminal prosecutions and civil actions for defamation the truth may
be given in evidence. If the matter charged as defamatory is true and was
published with good motives, the party shall be acquitted or exonerated.”
14
District Court’s rationale. In Boyles, the plaintiff’s picture was shown on screen
while the television reporter made statements about serious misconduct and death
occurring in a group home operated by his mother, and described the son (plaintiff
Boyle) as having been “reprimanded repeatedly for taunting retarded patients” and
“accused of raping one of the retarded patients.” 431 So. 2d at 634-35. Boyle
alleged falsity and the court found the statements to be “defamatory on their face.”
Id. at 635. There is no suggestion in the case that literally true facts can ever be the
subject of libel or slander or defamation. 3
3
Indeed, Boyles helps to explain why the District Court’s use of
“implied libel” does not support its attempt to impose a two-year limitations
period. “Implied libel” relates to the difference between libel per quod and libel
per se. Libel per se involves words that are actionable on their face and require no
showing of special damage, “the imputation being such that the law will presume
that any one so slandered must have suffered damage.” BLACK’S LAW
DICTIONARY, supra, “Libelous per se.” Slander, of course, requires falsity. Per
quod libel requires extrinsic facts to be alleged and proven and the Boyles court
pointed out the confusion which has occurred. The court referred to a law review
article which in turn cited Piver v. Hoberman, 220 So. 2d 408 (Fla. 3d DCA 1969).
There, Piver, a City councilman, sued for libel based on a recall petition, charging
that “the statement of grounds for the recall was false.” The grounds did not
charge a crime or misconduct in office and the court concluded that “if the
statements in the petition are libelous, they are not libelous per se but per quod”
and required “[a]n allegation of special damages.” Id. at 408-09. So, libel by
implication or innuendo, while needing to allege extrinsic facts and special
damages, still requires that the statements spoken or written be false; the only
difference between per se and per quod libel being that the harmfulness of the false
statements is apparent from the words themselves. Either way, per se, per quod, or
by implication or innuendo, a false statement is the sine qua non for libel or
15
The Civil Florida Standard Jury Instructions leave no doubt that the
statement must be factually false to be actionable and support liability for
defamation. The instructions, in relevant part, ask the jury to determine:
Whether (defendant’s) statement concerning
claimant was in some significant respect a
false statement of fact. . . .
*
*
*
A statement is in some significant respect
false if its substance or gist conveys a
materially different meaning than the truth
would have conveyed.
See 4.1, Florida Standard Jury Instructions. See also, Rasmussen v. Collier County
Publishing Co., 31 Fla. L. Weekly D3112a, 2006 WL 3615189 (Fla. 2d DCA
2006) (“To prevail in a libel action, Mr. Rasmussen, who conceded that he was a
public figure, had to prove that the Daily News published defamatory statements
that were (1) statements of fact, (2) false. . . .”
The importance of false statements, as distinguished from true statements, is
underscored by the fact that the Supreme Court has expressly left open the question
of whether truthful publications may be actionable “for invading ‘an area of
slander, but not for a false light claim.
16
privacy’ defined by the State.” See Florida Star v. B.J.F., 491 U.S. 524, 109 S. Ct.
2603, 105 L.Ed. 2d 443 (1989):
Nor need we accept appellant’s invitation to
hold broadly that truthful publication may
never be punished consistent with the First
Amendment. Our cases have carefully
eschewed reaching this ultimate question,
mindful that the future may bring scenarios
which prudence counsels our not resolving
anticipatorily. . . .
Indeed, in Cox
Broadcasting [v. Cohn, 420 U.S. 469
(1975)], we pointedly refused to answer
even the less sweeping question “whether
truthful publications may ever be subjected
to civil or criminal liability” for invading
“an area of privacy” defined by the State.
420 U.S. at 491.
Id. at 532-533, 109 S.Ct. at 2608-09; see also Bartnicki v. Vopper, 532 U.S. 514,
529, 121 S.Ct. 1753, 1762, 149 L.Ed. 2d 787 (2001) (“Our refusal to construe the
issue presented more broadly is consistent with this Court’s repeated refusal to
answer categorically whether truthful publication may ever be punished consistent
with the First Amendment. . . .”) (citing and quoting Florida Star). Against that
background, there can be no doubt that the publication of truthful facts presented
in a false light is legally different from the publication of false facts, and that the
former cannot be called libel or slander. Therefore the publication of truthful facts,
as in this case, cannot be subject to a two year statute of limitations that applies
17
specifically to libel and slander.
The District Court’s error in equating true statements of fact with defamation
is exemplified by its analogies. The court wrote: “Courts in other jurisdictions
have resolved the problem, as we have here, by applying the shorter of the two
statutes when the false light action is based on a defamatory statement.” App. B, p.
18. (emphasis supplied). Anderson’s false light action is based on true statements
which, by definition, are not defamatory. The point is solidified when one looks at
the cases cited by the court below (id. at 18-19) to support the above quoted
statement. Each of them involved false statements as the basis for the false light
claim. 4
4
In Magenis v. Fisher Broadcasting, Inc., 798 P.2d 1106 (Or. Ct. App.
1990), the “alleged false light – that plaintiffs were involved with stolen vehicles
and narcotics – is plainly defamatory. Plaintiffs could have filed a claim for
defamation. That being the case, we conclude that the specific defamation Statute
of Limitations controls.” Id. at 1109. Joe Anderson could not file a claim for
defamation because the published facts were true. In Eastwood v. Cascade
Broadcasting Co., 722 P.2d 1295 (Wash. 1986), Eastwood alleged that a broadcast
describing him as “a co-conspirator, or an unindicted co-conspirator” in a federal
criminal case was “‘false, untrue, and totally incorrect.”’ Id. at 1795. In Smith v.
Esquire, Inc., 494 F. Supp. 967 (D. Md. 1985), the false light was a libel claim:
“Thus where the basis of the cause of action is the false nature of the publication,
i.e., a defamation, the action should be governed by the various limitations placed
on an action for defamation.” Id. at 970. Robinson v. Vitro Corp., 620 F. Supp.
1066 (D. Md. 1985) was a federal retaliatory discharge/employment discrimination
case with a false light pendent claim and the court’s comment that it agreed with
“Judge Miller’s reasoning [in Smith v. Esquire]” (id. at 1070) does nothing except
18
The erroneous hypothesis is further confirmed by the court’s extended
reliance on Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir. 1983), and its use of the
two-year Maine Statute in a 42 U.S.C. § 1983 case where the plaintiff doctor
brought a federal civil rights action against members of the Maine Medical
Association’s Ethics and Discipline Committee, claiming the “Committee’s report.
. . to have been false and appellees are alleged to have known it was false.” Id. at
12. Since there is no federal statute of limitations for § 1983 claims, federal courts
must look to analogous state causes of action and state statutes of limitations and in
Gashgai the court concluded that the defamation limitation was applicable.
Clearly Gashgai’s allegations of false statements met the definition of defamation,
and the court’s analogizing the cause of action to defamation was correct. But that
analysis cannot apply to a true statement, which cannot be defamation. In addition,
the Gashgai conclusion that a six- year statute would, “where ‘false light’ and
defamation coincide[,] defeat the obvious legislative intent to impose a relatively
short period of limitations for the bringing of defamation actions” (id. at 13), does
not support a two year statute here. That is so because Anderson’s false light
claim, which is based on a true, non-defamatory statement, cannot constitute libel
confirm that without falsity, i.e. defamation, Joe Anderson could not bring a libel
claim and therefore the libel limitations statute cannot be applied here.
19
or slander and does not “coincide” with defamation and the Florida Legislature has
not equated false light with defamation. See p. 8, n. 1, supra, and Appendix C.
Thus, the First District’s decision cannot withstand scrutiny. It refuses to
accept the legislature’s “libel or slander” language in section 95.11 (4)(g); it fails
to abide by the principles of strict statutory construction, especially with regard to
statutes of limitations; and its analogies are inapposite because the cases offered
are premised on false statements of fact, not, as here, true statements of fact that
cannot by established definitional, constitutional and common law principles be
likened to libel or slander. All they can be is invasion of privacy – “false light in
the public eye – publication of facts which place a person in a false light even
though the facts themselves may not be defamatory.” Agency for Health Care
Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239, 1252, n.
20 (Fla. 1996).
B.
Florida False Light Law
The District Court’s decision questioned the viability of a false light cause of
action in Florida, although it acknowledged that this Court has recognized the
claim. App. B, pp. 12-13. The court below wrote: “We conclude from all of these
decisions that, although the supreme court has recognized the potential existence of
a cause of action for invasion of privacy based on a false light theory, it has never
20
had occasion to decide whether such a cause of action actually exists in Florida.”
App. B., p. 13. The court also noted that “[o]ther district courts have tacitly
recognized false light privacy claims in theory, but in no other instance has a
Florida court ever upheld a claim based on this theory.” Id. at 14.
The false light cause of action does exist in Florida, and the court’s attempt
to question its existence is neither the subject of the certified question nor a basis
for disregarding the legislative statutes of limitations.
This Court has acknowledged “a distinct right of privacy as part of our tort
law that made particular conduct actionable” and set forth the “four types of
wrongful conduct,” including placing another in a “false light”:
(1) appropriation – the unauthorized use of a
person’s name or likeness to obtain some
benefit; (2) intrusion – physically or
electronically intruding into one’s private
quarters; (3) public disclosure of private
facts – the dissemination of truthful private
information which a reasonable person
would find objectionable; and (4) false light
in the public eye – publication of facts
which place a person in a false light even
though the facts themselves may not be
defamatory. Forsberg v. Housing Auth. of
Miami Beach, 455 So. 2d 373, 376 (Fla.
1984) (Overton, J., concurring).
Agency for Healthcare, supra, 678 So. 2d at 1252, n. 20 (emphasis supplied). In
21
Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156 (Fla. 2003), the Court quoted that
Agency for Health Care language and affirmed its viability:
It is correct, as the appellees argue, that this
Court set out the categories of the tort of
invasion of privacy for the purpose of
illustrating a point, not to directly address
the point of what alleged facts state a cause
of action for the tort of invasion of privacy.
But here we here affirm that the statement in
AHCA does correctly state what is included
in Florida’s tort of invasion of privacy.
Id. at 162 (emphasis supplied).
Heekin v. CBS Broadcasting, Inc., 789 So. 2d 355 (Fla. 2d DCA 2001),
quoting the Agency for Health Care formulation of the four types of wrongful
conduct, saw the difference between defamation and false light:
In considering the four types of invasion of
privacy it becomes clear that invasion of
privacy is a separate and distinct cause of
action from libel or slander. Three of the
four types of invasion of privacy do not
reference any type of false information or
defamation. Only false light invasion of
privacy contemplates any issue of falsehood;
and even then the tort may exist when the
facts published are completely true.
Id., 789 So. 2d at 358 (emphasis supplied).
It is apparent that the District Court’s statute of limitation decision was
22
driven by its doubts about false light claims. But the court’s mistaken premises –
that Florida has not accepted the cause of action and that false light (based on true
facts) is somehow synonymous with defamation – led it to a decision that violates
the rules of general statutory construction and the rules of statutory construction
specific to statutes of limitations.
The court’s reliance on commentator and case suggestions that false light
duplicates defamation and adds nothing ‘“distinctive to the law”’ (App. B, p. 9, n.
1) (quoting J. Clark Kelso, False Light Privacy: A Requiem, 32 Santa Clara L. Rev.
783, 785 (1992)), ignores the truth that defamation – libel or slander – must
include words that are false. Libel or slander provides no remedy for an injurious
truth. The fourth species of false light invasion of privacy fills that gap, and unless
the legislature places a two year limitation on such a cause of action, the four year
statute set forth in section 95.11(3)(p) must be applied.
CONCLUSION
For the foregoing reasons the certified question should be answered this
way: “An action for invasion of privacy based on the false light theory is governed
by the four-year statute of limitations that applies to unspecified tort claims.” The
decision below should be disapproved and the trial court judgment affirmed.
23
Respectfully submitted,
BRUCE S. ROGOW
Florida Bar No. 067999
BRUCE S. ROGOW, P.A.
Broward Financial Centre, Suite 1930
500 East Broward Blvd.
Fort Lauderdale, FL 33394
Ph: (954) 767-8909
Fax: (954) 764-1530
e-mail: [email protected]
and
BEVERLY POHL
Florida Bar No. 907250
BROAD AND CASSEL
100 S.E. Third Avenue, Suite 2700
Fort Lauderdale, FL 33394
Ph: (954) 764-7060
Fax: (954) 713-0962
e-mail: [email protected]
and
WILLIE E. GARY
Florida Bar No. 187843
PHYLLIS GILLESPIE
Florida Bar No. 130801
C.K. HOFFLER
Florida Bar No. 188646
GARY,WILLIAMS, ET AL.
221 E. Osceola Street
Stuart, Florida 34994
Ph: (772) 283-8260
Fax: (772) 463-4319
Counsel for Petitioner
24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via U.S. Mail this 21st
day of December
, 2006 to the following
persons:
ROBERT C. BERNIUS, ESQ.
NIXON PEABODY LLP
401 9th Street, N.W., Suite 900
Washington, D.C. 20004-2128
Ph: (202) 585-8000
Fax: (202) 585-8080
Attorneys for Multimedia Holdings
Corp.
DENNIS K. LARRY
DONALD H. PARTINGTON
CLARK, PARTINGTON, HART,
LARRY,
BOND
AND
STACKHOUSE
125 West Romana Street, Suite 800
Pensacola, Florida 32501
Ph: (850) 434-9200
Fax: (850) 432-7340
Attorneys for Gannett Co., Inc.
TALBOT
(SANDY)
D'ALEMBERTE
1117 Myers Park Drive
Tallahassee, FL 32306-1470
Ph: (850) 644-0800
Attorney for Appellants
ROBERT G. KERRIGAN
KERRIGAN, ESTES, RANKIN &
MCLEON, LLP
400 E. Government Street
Penascola, Florida 32501
Ph: (850) 444-4444
Fax: (850) 444-4495
Attorneys for Multimedia, Inc.
25
_________________________
___
BRUCE S. ROGOW
26
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Initial Brief is in compliance with Rule
9.210, Fla.R.App.P., and is prepared in Times New Roman 14 point font.
BRUCE S. ROGOW
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